Q: When must an employer pay for a nonexempt employee's meal or rest period?

A: If an employer provides its nonexempt employees with meal or rest periods (which an employer is not required to provide under federal law, but may be required to do under certain state laws), whether such periods are compensable depends on a number of factors.

Meal periods: The U.S. Department of Labor (DOL) has issued the following regulatory test to determine whether a meal period is compensable:

To constitute a bona fide meal period, it must be a period of time set aside for a regular meal and must be long enough to allow the employee to use it for this purpose. It must occur at a time of day which, in light of the employee's working hours, is suitable for a normal meal period. And finally, it must be an uninterrupted period during which the employee has no duties whatsoever to perform. If so-called meal periods do not meet these tests, they must be considered hours worked and compensated accordingly.

Accordingly, courts have held that the following three conditions must be satisfied in order for the time spent during a meal period not to be compensable:

Generally, the meal period must be at least 30 minutes in duration.

The employee must be completely relieved of all duties.

The employee must be free to leave his or her workstation.

The second two factors warrant further explanation. With respect to the second factor--that the employee be completely relieved of all job duties--some courts have applied a more relaxed test, requiring only that the employee not be engaged in the performance of any substantial job duties and that the employee does not spend the time predominantly for the employer's benefit. For example, the DOL issued an opinion letter explaining that where police officers were required to remain in uniform and respond to occasional public inquiries during a 45-minute meal period, such time, nevertheless, was not compensable. The bottom line is that the more duties performed by the employee, and the less control the employee has over the way he or she spends the meal period, the greater the likelihood that the time counts as hours worked and is compensable.

With respect to the third factor, while the employee must be free to leave the workstation for the meal period to be noncompensable, there is no requirement that the employee be permitted to leave the work premises. Thus, requiring that employees take meal periods on the employer's premises does not automatically render the time compensable. However, if an employer requires that its employees remain on the premises, it must be careful not to run afoul of the second factor by also having the employee perform job duties.

Employers must also be careful if they permit employees to remain at their workstations during meal periods. If an employee voluntarily works during a meal period, the time spent working will be compensable working time if the employer knew or should have known that work was being performed. Thus, actual knowledge that the employee is working during a meal period is not required. If, however, an employer had no reason to know that work was being performed, and if the work performed was de minimus, the time spent working is not compensable.

Rest periods: With respect to rest periods, the DOL's position is that rest periods of 20 minutes or less must be counted as hours worked. For rest periods longer than 20 minutes, the compensability of such periods will depend on the employee's freedom during the break and whether the employee is completely relieved of all job duties (similar to the analysis for meal periods).

Note: The information in this column is provided by the author, not Entrepreneur.com. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.

Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.